Sydney Morning Herald columnist

Imagine there is a law that criminalises obese people going to McDonald's. Under this law they can be fined for ''having in their possession'' a Quarter Pounder and a thick shake and if they don't pay the fine they could be sent to jail.

Then further imagine there are laws that protect people from being discriminated against on the grounds of being extraordinarily fat. However, there is also provision for ''special measures'' which say it is OK to discriminate to protect grossly overweight people from themselves and from getting bigger and costing the state a large amount of money dealing with associated health issues.

The trouble is this is not the first time ''special measures'' have been used to justify racially discriminatory policies.

You can see this sets up an interesting tension. Would the anti-discrimination law have the effect of striking down the anti-McDonald's law? What role would the ''special protection measures'' have in the search for a fair outcome?

Something similar has just played out in the High Court, which has held the criminalisation of an Aboriginal woman on Palm Island for possessing a bottle of Bundaberg rum (three-quarters full) and a bottle of Jim Beam bourbon in the boot of a car, on the face of it, was contrary to the Racial Discrimination Act but nonetheless amounted to a lawful protective measure.

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The Queensland Liquor Act and its Palm Island regulations restricting the possession of alcohol in certain areas trumped the Commonwealth's Racial Discrimination Act.

''Special measures'' under the Commonwealth act and the international treaty for the elimination of racial discrimination exempt from anti-discrimination law other provisions which seek the protection and advancement of groups or individuals. Limiting the possession of alcohol now has been held to meet the ''special measures'' exemption. This is the recent decision by the High Court in Maloney v The Queen.

The trouble is this is not the first time ''special measures'' have been used to justify racially discriminatory policies, particularly where parliaments carve out areas or zones and restrict normal human activities on the grounds of race.

The High Court said the Palm Island liquor restrictions applied to everyone. Nonetheless, all but a tiny minority on the island are

Aborigines and this suggests the liquor restrictions have a rather deliberate target and are therefore racially discriminatory.

That the restrictions were put in place in the wake of the death in police custody of Cameron Doomadgee and the ensuing riots adds weight as to whom they are aimed.

So too do the findings of the Cape York justice study by Tony Fitzgerald. Its report said: ''Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities' existence and obstruct their development.''

The regulations are racially discriminatory, but in the next breath the court found the discrimination was justified as a special measure for the advancement and protection of the indigenous inhabitants of the island - even if the behaviour of individuals is criminalised for the overall benefit of the group.

What constitutes special measures? Are they for advancement through positive discrimination, quotas, and the like?

The High Court, generally, did not think special measures required agreement with local communities or even consultations about what restrictions were in their best interest or if the measures had a long-term, but temporary, beneficial purpose.

Apparently, the idea of consultation and general agreement about what protective measures might work beneficially did not appeal strongly to their honours. It took six separate judgments to get there.

Just to hand is a Commonwealth parliamentary human rights committee report which takes issue with the High Court's finding in the Maloney case. The report is into the Stronger Futures in the Northern Territory Act. Its aim, among others, is to ensure human rights are applied equally across the territory.

The report puts it quite gingerly, but this is shorthand for the court got it wrong: ''… the judgments in Maloney … adopt a number of conclusions which are arguably not in conformity with the current state of international law and practice relating to special measures''.

Further: ''The committee remains of the [unanimous] view that the automatic invocation of the special measures provision to justify every racially based measure does not reflect the accepted analytical framework adopted under international law.'' Amendments are recommended.

Ms Maloney's lawyers submitted other measures could be used to control drinking on Palm Island, but the judges said the quantitative possession restrictions in areas where Aborigines congregated seemed a good way to go.

If the practices of the Stolen Generation were still the policy of today, on the reasoning of the High Court, special measures would exempt the application of the Racial Discrimination Act's usual protections.

This High Court decision opens up some exciting possibilities.

Twitter:@JustinianNews

13 comments

Alcohol misuse is a problem everywhere. We live in a sad dysfunctional world.

Commenter

Big Artie

Date and time

July 19, 2013, 4:55AM

Surely on the grounds of common sense, if not decency, any "special measures" put in place MUST have some kind of exit criteria - there should be some idea of what problem it's trying to curb, some way to measure the effectiveness of the measures, and some requirement to take the measurements and change the legislation according until it can be repealed. Granted that problems like alcohol culture can take one or two, or even more, generations to solve, that doesn't mean "special" should be the case in perpetuity. I would have thought the point of legislation is that the problem is not considered intractable.

Commenter

MerriD

Date and time

July 19, 2013, 8:43AM

OK, Richard. It's a nice theoretical point that you make. But this is not about legal theory.

Almost all Aboriginal communities want tough alcohol restrictions and there is no reason why government should not be able to deliver on that need. End of story.

Commenter

TBear

Location

Snazzy Cave (Sydney)

Date and time

July 19, 2013, 10:33AM

The evil white man introduced alcohol to the indigenous population. The evil white man now wants to take it away to protect the indigenous population. Can't win.

Commenter

obesenation

Date and time

July 19, 2013, 10:42AM

By the way don't we have a one way anti-discrimination law?

Commenter

half

Location

Sydney

Date and time

July 19, 2013, 11:01AM

The question you're not asking, is why is racial discrimination unlawful in the first place?

Discrimination on the basis of race is generally unlawful, because it is an impossible to rationally justify. It fails the test of reason.

However clearly, the issue of alcohol abuse in aboriginal provides a clear rational basis of common benefit to the entire community to restrict alcohol availability that far exceeds the negative impact - which remains true even if the members of community itself disagrees with that assessment.

Yes, this superficially appears to be the same justification used for the stolen generations - but it's not, because taking children from their parents purely on the basis of their race clearly does not provide the community with a common benefit that outweighs the costs.

Commenter

Christian

Date and time

July 19, 2013, 11:12AM

among others, is to ensure human rights are applied equally across the territory.

What about the 2 000 000 people struggling to make ends meet????

Commenter

half

Location

Sydney

Date and time

July 19, 2013, 11:13AM

It won't be any surprise to the moderators that I agree with the contention that the High Court got it wrong. There must be far more scrutiny of the jurist classes. They have gone bezerk.

Commenter

archivista

Date and time

July 19, 2013, 12:06PM

Anytime a journalist starts questioning a High Court judgement with phrases like '.... suggests ....', I suspect a long bow is about to be drawn. Simply because the bulk of Palm Island is of a particular race, does not make any local law 'racist', provided it applies to everyone, regardless of race. To suggest otherwise is to draw a completely wrong conclusion, whatever the author's natural bias. As for the Parliamentary Human Rights committee, the sooner that rabble is shut down the better. Their focus never has been on human rights, it has always been on the 'rights' of some humans.

Commenter

Citizen

Location

Adelaide

Date and time

July 19, 2013, 12:10PM

I lived in Arnhem Land for several years and these restrictions were asked for by the Elders, as a measure to minimise drunkenness and violence. The community was dry, it didn't matter who you were. Where do you get the racial line from?

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